Have Pokémon Go players trampled your yard or overrun your business looking for virtual characters? Do you consider it trespassing? Some homeowners do. As the Wall Street Journal reports, a federal judge will decide if a lawsuit can go forward that charges the game’s developers with violating trespass and negligence laws. The issue is software that sends users to specific locations. To learn more about the law, and the implications of the lawsuit, the Orlando Sentinel Editorial Board engaged Shawn Bayern, a law professor at Florida State University.

Q: You’ve described the law as very messy, and that each state handles it differently. What makes Florida’s law different?

A: It’s not that Florida’s is different in a systematic way. It’s just that the law concerning things like “trespass” and “nuisance” can be very messy, and states often differ in the details. If I had to make a broad statement, it’s often harder for plaintiffs to win tort lawsuits in Florida than in other states. Some other states have developed legal doctrines over the last 50 years that are more protective of plaintiffs.

Q: Can you describe the case brought by residents of the Villas of Positano in South Florida?

A: Essentially, their argument is that the Pokémon Go app led players to their property, causing damage and loss of “use and enjoyment” of the property. There are a variety of ways you can make this argument under law, but I personally think that “negligence law” is the most appealing.

If you generalize a bit, you can think of the argument like this: We all know that if you drive a truck negligently and cause property damage, the law will make you pay for it. What if you design an app carelessly and cause the same type of property damage? Should you be responsible for that?

One big difference with a careless app is that your harm is less “direct”; it involves other people whom you don’t control. But the law already recognizes many situations where you can be responsible for carelessly creating situations that make it more likely that third parties will hurt people. For example, an apartment building might be responsible for adopting negligent security practices, increasing the risk of crime to its residents. In one case in California, a radio station with a large young audience was held liable when it held a contest that encouraged highway drivers to be the first to find a roving, mobile radio transmitter, and some young drivers got into an accident as a result. I can easily imagine future app cases quite similar to that.

Q: Is it realistic to conclude that Niantic can control Pokémon Go player’s real-world movements?

A: The reason I think “negligence” law makes the most sense here is that it’s not necessarily about control. Obviously if the makers of an app intentionally induce other people to commit trespass, that’s wrong. But the makers of an app can still be careless in leading other people to act in harmful or dangerous ways, just by being thoughtless in how they create the app. To put it simply, you don’t have to be able to control anyone for a court to find that you acted unreasonably in creating a risk of damage or danger.

It’s worth adding that an app maker can still be careless even if it makes players sign a form that says they promise not to trespass or do anything illegal, as I believe the defendants did here. In general, negligence law looks at the defendant’s conduct overall. It might be a good idea to tell players to behave safely, but that shouldn’t be a magical formula to protect you from liability if you’ve otherwise been careless in setting up a game.

An app maker can still be careless even if it makes players sign a form that says they promise not to trespass or do anything illegal.— Shawn Bayern, FSU law professor

Q: What are the broader implications for makers of games or other software that sends users to specific locations? What would be the practical effect on gaming technology and players from ruling against Niantic?

A: Of course, everyone likes legal rules that exempt them from any possible liability. That gives peace of mind and prevents them from having to pay to defend against meritless lawsuits. But all negligence law requires, in general, is that you behave reasonably. In other words, the problem isn’t publishing an app that tells people to go to a specific location; the problem is doing that in a way that unreasonably risks harm to people or property.

Q: Have laws — or court rulings — caught up with advances in technology and software? What advice would you have for Florida lawmakers to update trespass laws? Should they cover only physical intrusions or virtual ones?

Jordan Krumbine / Orlando Sentinel

Summer Aleshe successfully catches a Pokémon in front of the Mako roller coaster at SeaWorld.

A: One nice thing about the common law — the way judges respond to new cases and extend existing doctrines — is that it can be very flexible. Judges should always be open to applying existing doctrines in new ways to suit advances in technology. Here, negligence law is quite an adaptable tool. If our general rule is “if you act unreasonably and cause personal injury or property damages as a result, you have to pay for it,” that seems to extend pretty well into at least some new technologies.

Emilee Jackson / Orlando Sentinel

Hunting for Pokemon characters while wearing red, blue or yellow team colors as participants stroll to different bars throughout downtown Orlando.

Hunting for Pokemon characters while wearing red, blue or yellow team colors as participants stroll to different bars throughout downtown Orlando. (Emilee Jackson / Orlando Sentinel)

I’d be more skeptical of the need, at the moment, of claims that are more like “virtual trespass.” If a game wants to let me wander around a map and pretend to be walking on other people’s property while I’m sitting at home, that shouldn’t be a problem. The concern is that an app can cause real-world damage, and that harm is no less real just because it’s caused by third-party players of a game.

Of course, there are many environments where virtual things are quite valuable on their own. For example, my understanding is that there are some games where “real estate” in the game — purely virtual property — sells for significant sums of real-world dollars. Protecting that sort of virtual property might become a significant issue for the law in the future.